Of the expedi cacy of taking; and returning witnesses. "prisoner has been committed, and in his absence, such examination ought not to be re"turned as one of the depositions, for nothing "should be returned as a deposition against a "prisoner, unless the prisoner had an opportu "nity of knowing what was said, and an oppor"tunity of cross-examining the person making "the deposition."(g) 66 It is highly expedient to the furtherance of the ends of justice, that whenever prisoners the examination" offer to produce witnesses before the Magistrate, of the prisoner's in answer to the charge made against them, "such witnesses should be regularly examined "on oath, and their statements taken down in "writing, and returned with the depositions. "Whether the evidence so adduced be true or "false, it is very important that it should be "received and taken down. If it be true, it may be so clear, positive, and distinct as to explain or contradict the evidence adduced in support of the charge, in such a manner as completely to satisfy the Magistrates that there "is no sufficient ground for judicial inquiry' "into the guilt of the party charged; in which case he ought to be discharged; or the evidence 66 66 (9) Per Lord Denman, C. J., Reg. v. Arnold, 8 C. & P. . Nott, 1 C. & Mars. 288, ante, p. 673; Woodcock's case, 1 Leach, 500; and the judgment of Grose, J., in Rex v. Eriswell, 3 T. R. 707, Č. S. G. ́ ́ adduced on behalf of the party charged' may, "in the opinion of the Magistrates, weaken the "presumption' of the party's guilt, but there "may notwithstanding appear to them to be "sufficient ground for judicial inquiry into the "the party's guilt; in which case the Magistrates "should admit the prisoner to bail. And even "if the evidence so adduced should not produce "either of these results, still it is important, for "the sake of the prisoner, that his witnesses "should be examined, and their depositions re"turned, as he is thereby freed from the sugges "tion often made at the trial, that the case en"deavoured to be proved before the jury, has "been concocted since the examination before "the Magistrate; and if, as has been suggested, (h) "the deposition of a witness, examined on be"half of a prisoner before the Magistrate, would "be admissible in evidence for the prisoner on "his trial, in case of the death of such witness, "it is but reasonable that the prisoner should "have the depositions of his witnesses taken, in "order to be used in case of such an event. On "the other hand, if the evidence adduced be "false, it is essential for the ends of justice that "it should be heard and taken down, in order "that the prosecutor may have the means before "the trial of investigating the facts deposed to, "and the opportunity of testing the statements "of the witnesses, by comparing those made on "the trial with those made before the Magistrate; " and moreover, the taking the depositions would serve as a check upon the prisoner, against setting up a different defence on the trial, and upon the witnesses against improving their tale "between the time of their examination before "the Magistrate and the trial.(i) (h) See the reporter's note, 7 C. & P. 270. (i) Among the numerous cases which have given rise to these remarks, the following may be mentioned: A prisoner was indicted for stealing a number of In addition to these valuable suggestions, it is only necessary (as regards the mode of taking the depositions) to observe that each deposition should be signed by the witness, and it is the Magistrate's duty, when the deposition has been so made and signed, to put his own signature to it, and to do so as each deposition is made; (s) if the witness cannot write, the clerk should watches at Cheltenham; when taken before the Magistrates, he produced a number of witnesses from London, and proposed to have them examined; this was refused; and upon the trial he produced the same witnesses, and their evidence, if true, proved that at the time the watches were stolen the prisoner and the witnesses were dining at a particular house in London, keeping the wedding day of the occupier of the house. On the part of the prosecution nothing was known of the witnesses or the house, and consequently there was little means for testing their credibility; the result was that the prisoner was acquitted; and in a short time afterwards it was well ascertained that the whole story was a fabrication, and might easily have been proved on the trial to have been such, if it had been known that such a defence had been intended, and that must have been known if the witnesses had been examined before the Magistrates.-C. S. G. (s) 11 & 12 Victoria, c. 42, s. 17. Ex-parte Joshua Fletcher, 22 Law Journ., M. C. 67. By the Act 11 & 12 Victoria, c. 42, s. 17, it is provided, that if upon the trial of the person accused it is proved on oath that any person whose deposition has been taken is dead, or so ill as not to be able to travel, and if it be also proved that such deposition was taken in the presence of the person accused, and that he or his counsel or attorney had a full opportunity of crossexamining the witness; then, if the deposition purports to be signed by the Justice before whom it was taken, it may be read as evidence in the prosecution without further proof, unless it shall be proved that such deposition was not in fact signed by the Justice purporting to sign it. By the New South Wales Act, 14 Vict., No. 43, s. 16, it is enacted, that in every case where any witness who shall have been called and examined before the Justice or Justices, by and on behalf of a party committed or held to bail, shall happen to die before the trial, the deposition of such witness may be read in evidence to the jury in his defence, if the party on trial shall so require. certify to his mark. An outline form of depositions will be found in Schedule M to Act 1, p. 62, which will serve as a guide to the Magistrate in preparing a case for trial. It will be observed that this form contains first a heading or general statement of the charge against the prisoner, similar to that embodied in an information; the several depositions of the prosecutor and witnesses then follow in succession, in such relative order as may best serve to give a connected account of the transaction. At the end comes the examination or voluntary statement of the prisoner, which must not be on oath, and to which reference will hereafter be made. be invited to the witnesses. As soon as the evidence of each witness is finished, so far as the prosecution is concerned, Prisoner should the prisoner should be invited by the Magistrate cross-examine to put any questions by way of cross-examination, in order to elucidate anything favorable to himself; and any answers made to questions put by the prisoner should be accurately written down at the foot of the depositions already taken, if they should appear to have any bearing upon the charge. But such additional evidence must be distinguished from the examination in chief. It may be proper to observe, that a prisoner is usually allowed to have the assistance of counsel Prisoner not always allowed or attorney, in order to cross-examine the several legal assistance witnesses for the prosecution, and to take any legal objections to the evidence which may seem expedient, and to advise the prisoner as to making any statement or adducing evidence by way of defence.(t) But in the absence of any such pro (t) The provisions as to the assistance of counsel or attorney in cases falling within the summary jurisdiction of Justices, are not extended to proceedings before them in their ministerial capacity; and at this stage, therefore, prisoners can only have the benefit of professional assistance by permission of the Justices, (which, however, is very rarely refused,) and not as a matter of right, as when upon their trialss. Vide Mr. Saunders' excellent remarks on this subject, in the note to section 19 of Act 1, p. 36. In taking the evidence the hearsay or surmise. fessional assistance, it becomes more obligatory on the Magistrate to see that the prisoner has fair justice done to him, and that he is not entrapped into any confessions, or unwittingly made accessory to his own conviction, in any mode not authorised by the law. In taking the depositions of ignorant witnesses, facts should not great care is necessary, in order to avoid writing be inixed up with down a variety of matters altogether irrelevant. It is indeed very difficult to make witnesses in the lower ranks of life discriminate between what is good evidence and what is otherwise-to state only that which they saw and did, and to suppress that which they only heard or surmised. A witness of this description will frequently go on for a considerable time in telling a story, and particularising precisely as if he or she had been present and saw it all; whereas it presently turns out that the story was merely communicated by a neighbour. And this observation applies particularly to female witnesses among the lower orders, who are generally but too happy to proffer their testimony and display their garrulity. Depositions are sometimes taken very carelessly in this respect; mixing up facts with hearsay and surmise, and involving the whole case in such inextricable confusion, that the presiding Judge has a difficult task to unravel and present the real facts to the Jury.(v) When this fault is committed by the professional clerk, it is, of course, less excusable than when the examinations have been taken by the Magistrate himself, who may be unaided by experience or a knowledge of the rules of, evidence. When the Magistrate should dis The depositions on the part of the prisoner charge or remand having been all taken, the Magistrate should consider whether they contain such a strong prima the prisoner. (v) Particular care is necessary to avoid taking down any conversation deposed to by a witness, unless it occurred in the presence and hearing of the prisoner; as it will not otherwise be legal evidence. |